The US Department of Homeland Security (DHS) last month issued a notice that it is storing social media information on immigrants, including lawful permanent residents and naturalized US citizens, apparently indefinitely, in a government database that contains “Alien Files” (A-Files). This is an invasive new feature of DHS’s previously known programs on collecting social media information. DHS’s collection and storage of this sensitive information will chill and deter the free speech and association of immigrants to the United States, as well as the US persons who communicate with them.

History of DHS Social Media Surveillance

DHS has a long history of collecting and scrutinizing social media information:

• DHS began monitoring social media at least as early as 2010. That year, the department launched pilot programs to monitor public posts to enhance the government’s “situational awareness” about unfolding natural disasters and other major events.

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• At least as early as 2012, DHS began monitoring social media for more targeted “operational uses” that involve specific individuals (see Directive Number 110-01 and Instruction Number 110-01-001). For example, DHS scrutinizes public posts when “investigating an individual in a criminal, civil, or administrative context, making a benefit determination about a person, [or] making a personnel determination about a Department employee.” This 2012 policy permits DHS to collect social media information about those seeking US immigration status, and it is the basis for last month’s A-File notice, according to arecent DHS statement.

• In 2015, US Citizenship and Immigration Services (USCIS), a DHS component agency, began pilot programs to “expand” social media surveillance and achieve “systematic screening” of those seeking US immigration status (e.g., US naturalized citizen, lawful permanent resident, or work visa), according to a report by the DHS Inspector General.

• At least since 2015, the Office of Intelligence and Analysis, a DHS component agency, has been gathering intelligence from publicly available social media platforms, according to Policy Instruction IA-900 (which ACLU obtained via the Freedom of Information Act).

• Later in 2016 and into 2017, US Customs and Border Protection (CBP), a DHS component agency, along with the US State Department, made official the collection and evaluation of social media information of non-immigrant foreign visitors to the United States. EFF, along with several other rights groups, submitted comments opposing social media screening of visitors from visa-waiver countries, visa applicants from China, and visitors from around the world who seek visas from US consular officials.

• DHS is currently developing an Extreme Vetting Initiative, which will deploy data-mining software to screen non-immigrant foreign visitors. Consistent with what DHS is already doing, this program reportedly will include the collection of publicly available social media information, as well as data gleaned from “blogs, public hearings, conferences, academic websites, radio, [and] television,” among other sources.

• CBP officers often ask travelers crossing the US border, including US citizens and lawful permanent residents, for their social media identifiers. CBP officers also interrogate international travelers about the content of their social media profiles, including one of the plaintiffs in the new EFF-ACLU lawsuit against DHS’s warrantless border device searches. Additionally, CBP officers have searched social media apps on mobile devices; however, the agency recently instructed its officers not to search cloud content via mobile devices.

New Details Emerge About Social Media Surveillance of Immigrants

The new DHS notice illuminates several critical things that the public previously did not know about DHS’s programs of social media surveillance of immigrants: 1) what data is being collected, 2) where this data is being stored, 3) how long this data is being retained, 4) what this data is being used for, and 5) who this data is shared with.

2. WHERE: DHS stores this social media information in each immigrant’s “Alien File,” or “A-File” for short. This is a government record keeping system that tracks individuals as they move through the U.S immigration process, which may culminate in lawful permanent residency (a green card) or naturalized citizenship.

3. HOW LONG: It appears that DHS indefinitely stores social media information (and other data) in the A-File. The DHS notice states that the A-File is transferred to the National Archives and Records Administration (NARA) 100 years after the individual’s date of birth.

4. USE: DHS officials across this vast department can use the social media information (and other data) in the A-File for a myriad of purposes — 41 are listed in the notice — including for intelligence gathering and counter-terrorism.

5. SHARING: DHS can share social media information (and other data) in the A-File with a myriad of entities and individuals outside DHS, including other US government agencies, state and local authorities, foreign governments, and private parties.

In short, the new DHS notice presents many disturbing facts about what DHS does with immigrants’ social media information after DHS collects it.

Questions Remain

Many questions remain about the collection and use of immigrants’ social media information. For example, can social media information contained in someone’s A-File, collected while they were still an immigrant, be used or sharedafter they have become a naturalized citizen? And what are the social media “search results” that go into the A-File?

Additionally, the question has been repeatedly raised in recent days about whether DHS collects social media information about someone after they have become a naturalized citizen. EFF is not aware of such a DHS program. However, given the ongoing concern about the issue, DHS should directly address it.

Finally, the DHS Inspector General has called out the department for failing to have a means of evaluating whether all this social media monitoring is actually effective, particularly in screening out would-be terrorists.

Social Media Surveillance Chills First Amendment Rights

The new DHS notice underscores DHS’s invasive social media surveillance of immigrants. But law-abiding immigrants should not have to worry that the government is monitoring their social media profiles.

Individuals’ First Amendment rights to free speech and association — particularly for naturalized citizens and lawful permanent residents — are chilled by the government collecting information about them. This includes chronicling their beliefs and opinions; mapping their social networks; tracking their movements — and permanently storing this information in a government database, and using it against them when making decisions about their immigration status, or for a myriad of other purposes.

Immigrants today are just like their predecessors of centuries past, who come to America seeking freedom and a better life, and who aspire to fulfill the duties of citizenship. Our government should not single them out for invasive social media surveillance.

Sophia Cope has been a civil liberties attorney for more than a decade and has experience in both litigation and policy advocacy. Prior to joining the Electronic Frontier Foundation, Sophia spent eight years in Washington, DC. She worked at the Newspaper Association of America on freedom of the press and digital media issues, with a focus on protecting journalists' confidential sources. She advocated for a federal shield law, a warrant-for-content requirement under the Electronic Communications Privacy Act and improvements to the Freedom of Information Act. She also wrote a chapter for a book published by the American Bar Association entitled 'Whistleblowers, Leaks and the Media: The First Amendment and National Security' and spoke out against NSA surveillance. She was an adjunct professor of media law for nearly four years, teaching Washington-area undergraduate communication and journalism students. Sophia is a graduate of Santa Clara University and the University of California's Hastings College of the Law.

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